Boston College: A Dramatic Climbdown Or A Sham Appeal?

They say that even a broken clock is right twice a day. Boston attorney Theodore Folkman, aka ‘Ted’, is doing well to be right once in a blue moon but this time I have to admit he is right. Boston College did not include Dolours Price in its appeal because the deadline to do so had expired but for other, as yet unexplained but guessable reasons.

Theodore points out that the clock began ticking towards the real deadline for Dolours Price’s interviews on December 27th, when a court order was made relating to the handing over of her interviews with Boston College, and not December 16th when the district court ruled in favor of the US attorney’s subpoenas in respect of the interviews themselves.

Since there still remains plenty of time before the deadline on Dolours Price interviews expires the question arises, why did Boston College not include her interviews in their planned appeal? And why is the college not challenging the core issue, the right of colleges to conduct confidential research, but choosing instead to argue the esoteric point that the District Court “incorrectly applied its own review standard” when determining which interviews should be surrendered?

A clue to the answer, simply, can be found in a quaint piece of political folklore that is played out every July 13th in the Co. Down village of Scarva in Northern Ireland. It is called ‘The Sham Fight At Scarva’ and every year Loyalists from all over the North gather to watch the re-enactment of the Battle of the Boynewhich established Protestant rule in Ireland for the next two and a bit centuries and laid the basis, at least in part, for the conflict that has raged in Northern Ireland for too many years to count.

A bewigged King William, the Protestant hero from Holland invited by English aristocrats to assume the throne of England, sits astride a white horse in a field just outside the village. Dressed in seventeenth century garb, conveniently colored in shades of orange, he clashes wooden swords with Catholic King James, clad in green just in case there’s any doubt which side he is on. The battle ends the same way every year and as it ended way back in 1690, with King Billy giving King James a hiding to the cheers of the assembled Orangemen and their families. Nobody expects any other outcome, but that’s not the point of the exercise. It is an empty ritual meant to impress and perhaps reassure the faithful but with no meaning beyond what you see.

That’s what Boston College’s appeal amounts to as well. A gesture meant to impress – in its case to impress an audience growing increasingly restless at its indifference to the future of academic research – but otherwise an utterly meaningless ritual whose outcome is essentially predetermined.

Let me explain.

The first thing to bear in mind is that there were two subpoenas served on Boston College. The first, in May 2011, applied to Dolours Price’s interviews with the college (also Brendan Hughes but that’s not relevant here). The second, in August that year, sought any other interviews that touched on the IRA’s ‘disappearance’ of Jean McConville in 1972. The two sets of subpoenas were dealt with separately by Judge William Young in the Boston Federal District Court although often during the same sittings.

He handed down his substantive decision on Dolours Price on December 16th, 2011, refusing Boston College’s motion to quash the subpoena issued against her interviews. Eleven days later, on December 27th, he issued an order to Boston College to hand her interviews over to the court.

The same judgement on December 16th ruled against the efforts to quash the August, 2011 subpoenas served on the rest of the archive but this part of the action was treated differently from Dolours Price’s interviews. Dealing with these subpoenas, which demanded all the other interviews that made mention of Jean McConville, meant someone had to go through the entire archive of IRA interviews to determine which was relevant and which was not.

Boston College asked for an in camera review of the entire IRA archive in order to accomplish that and when the judge granted it, on December 22nd, BC declared this to be a famous victory. Now in camera reviews are pretty standard in First Amendment cases so Boston College didn’t really have much to boast about. But that didn’t stop it.

To cut a long and, to be frank, squalid story short the court ended up having to review the non-Dolours Price part of the IRA archive itself and Judge Young and his various clerks spent the New Year holidays reading these interviews. On January 20th, 2012, Young issued an order against seven of the interviews.

After the December 16th ruling against Boston College’s effort to quash the subpoenas, the college let it be known that it would not appeal that decision. The deadline for doing so expired last week, actually on the same day the ACLU in Massachusetts filed notice of an amicus brief. So Boston College cannot and will not, no matter what impression has been created by the announcement on Tuesday evening, appeal Judge Young’s substantive judgement against the effort to quash the subpoenas.

Since it hailed the in camera review of the non-Dolours Price interviews as a great victory, BC has decided to base its appeal instead on the seven interviews chosen by Judge Young for surrender to the PSNI. For reasons that eventually will become clear – and embarrassingly so for many people caught up in this story – BC could have included Dolours Price interviews in the appeal on the same basis as the other seven but chose not to.

All that remains, like the convicted man quibbling over the means of his own execution, is for Boston College to find issue with which of those seven interviews should or should not be handed over; which of them qualify as satisfying the demands of the subpoenas and which do not. In other words BC will help to decide which of its interviewees, to whom it pledged confidentiality unto death, should get the chop and which should not. If that qualifies as an appeal within the normal meaning of the word then I am the King of Siam.

As I say, for reason I cannot yet explain, BC could have asked for Dolours Price’s interviews to be vetted in the same way, but did not.

That is what this appeal is about. BC is not appealing to uphold the principle behind their original legal action, i.e. to defend academic freedom and the right of places of learning to conduct confidential research but really to give the appearance and illusion of appealing – and hoping this gets its critics off its back – while not really doing so.

It will be interesting to watch BC’s attorneys in action during the appeal. Will they go through each of the interviews in the courtroom, arguing that this one’s involvement or knowledge meets the requirements of the subpoenas while that one does not? If so, then not only will BC break the confidentiality pledge in open court but it will have crossed that sacred line that divides us all in such matters and joined the police and prosecutors in deciding who is worthy of indictment and therefore conviction and who is not. Is this what constitutes defending academic freedom? Or they might just throw the whole matter into the laps of the appeal judges and let them decide, in which case what is the point of the exercise?

Either way, just like the Sham Fight At Scarva, we all know what the outcome will be. Some interviewees will be sold down the river and the principle of academic freedom abandoned. How cynical and contemptible is that?

So to get to the point. The opening paragraph of our statement should have read thus: “We would like to welcome Boston College’s decision to lodge an appeal against the subpoenas served against seven of our interviewees but regret and deplore that that for reasons that defy common sense the college omitted the interviews of Dolours Price.”

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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